The Failed Experiment of Immigrant Family Detention

In this Wednesday, Sept. 10, 2014 photo, elementary aged children talk about a short story in Spanish during a class at the Karnes County Residential Center, a temporary home for immigrant women and children detained at the border in Karnes City, Texas. (AP Photo/Eric Gay)Eric Gay / AP

Aug. 3, 2015 / 4:35 PM GMT

By Amanda Sakuma

KARNES COUNTY, Texas – The steady hum of construction was a near-constant backdrop here for months, as the federal government rushed to build higher cement walls to confine immigrant mothers and their children. Now those sounds are being silenced as the cracks appear in an immigrant detention policy that may soon soon give way.

When the federal government first began detaining immigrant women and children caught crossing into the U.S. illegally, it was supposed to be a long-term and humane solution to avert a humanitarian crisis at the border. But in the last year a series of miscalculations, along with opposition from advocates and federal court rulings, have chipped away at the policy.

The dynamic has left the Obama administration caught in a paradox: The federal government is on the hook for contracts to build and run new detention facilities designed specifically to house families, while it may soon be legally barred from being able to fill them.

The latest blow came from District Court Judge Dolly M. Gee, who in a 25-page order last week blasted the administration for rushing to build new facilities that didn’t fully comply with long-established requirements for detaining young children. Noting that the testimony from women and children detained at the two new facilities contradicted the government’s rosy portrayal of conditions there, Gee ordered that the roughly 1,700 families that aren’t flight risks be released as soon as possible.

“It is astonishing that the defendants have enacted a policy requiring such expensive infrastructure without more evidence to show that it would be compliant with an agreement that has been in effect for nearly 20 years,” Gee wrote.

Family detention was intended to avert another crisis at the border. Last year, nearly 70,000 unaccompanied children were captured while crossing into the U.S., along with just as many families who were fleeing together from Central America. The floods of people were leaving countries ranked by the United Nations Office of Drugs and Crime as among the most murderous in the world – Guatemala, Honduras and El Salvador – where warring gangs are uprooting full generations of families and fueling a lucrative market of smugglers that offer safe passage through Mexico.

The spike in migration log-jammed every level of the federal government’s response and strained a bureaucratic maze that was ill-equipped to cope with the sheer volume of children entering the U.S. on their own. Federal officials sought to expand its detention capacity to hold more than 3,400 immigrant women and children by the end of this year. Two facilities – the Karnes County Residential Center and the South Texas Family Residential Center – are being built from the ground up to house the families, a towering increase from just a year earlier, when the U.S. was equipped to keep just 95 immigrant families in federal custody at a time.

The rush to expand family detention has baffled observers and advocates who saw similar measures fail in recent years. At least two detained mothers have reportedly attempted suicide since the new detention facilities opened up. Others tried to stage a hunger strike in protest of their detention. Mothers reported that their children were losing a significant amount of weight while in detention. Psychologists who toured the facility warned that prolonged confinement was having a negative impact on adolescents’ development.

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The kid-friendly blue paint lining the walls was barely dry by the time Polyane and 10-year-old daughter were placed in Karnes last August. They were among the thousands to flee their home countries only to languish in the facility as they sought asylum claims through the immigration courts. After nearly a year, Polyane has finally adjusted to the routine. Guards conduct headcounts at least three times a day: Around 7:30 a.m., 4 and 8 p.m. The rotation of food in the dining hall is a half-step above inedible, she says, with watery rice and undercooked beans. Bed raids are frequent and unannounced.

“It’s so complicated for us to be here so long. I thought, here, I’m going to be safe. That’s why I came to the U.S.,” Polyane says.

Every weekday morning, Polyane has taken her daughter’s hand and walked her to down the hall to a makeshift school, a classroom confined behind the walls of a 76,960 square-foot immigrant detention center. “She’s trying to keep her mind on school to pass her time but she’s crying all night — she wants to go home,” Polyane says of her young girl.

Alejandra,* another mother held in Karnes, keeps her son’s ID card photo to show how much weight he lost during their five months in detention after they fled from gangs extorting her family in El Salvador. Diego is far smaller than an average 7-year-old. His eyes are dull in the ID picture, his cheeks caved-in and face looking gaunt.

Alejandra started hoarding her own food and sneaking to back to their room to coax Diego to eat more. She was written up after the guards caught her hiding snacks. But in the dining hall everyday, Diego would barely touch his meals. “He practically didn’t eat there. He only had some cookies that I would grab and hide in my purse, in my pants or my sweater,” Alejandra says.

Another mother, 20-year-old Eluvia of Guatemala, said both she and her 3-year-old son were sick when they arrived in Karnes. She cried for days because she couldn’t get medicine to help with her son’s cough, she said – she only had salt water for his sore throat. “I don’t like to cry with my son,” Eluvia said. “He was very sick.”

Immigration advocates and attorneys have traveled to South Texas to provide legal services to the majority of women and children who are not just migrants, but asylum seekers.

“There are a lot of issues inherent in the set up the government has put together to detain women and children. They’re victims of severe trauma and they’re deteriorating in jail,” said Christina Brown, lead attorney for American Immigration Lawyer’s Association’s Immigration Council Artesia Pro Bono Project. “The administration needs to be paying attention to who these women are. It’s very clear that they are completely out of touch with what is happening at the border.”

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In the past, migrant families would have generally been allowed enter the U.S. and live with a sponsor while an immigration judge decided if they qualify for asylum. Federal officials are required by international law to offer protections to immigrants they find have a credible fear of returning to their home county.

Even so, administration officials remained adamant in the early days of the 2014 border crisis that the women and children caught entering the U.S. would be subject to swift deportation. Instead, most had legitimate claims to asylum.“Border security and refugee protection are not mutually exclusive,” said Shelly Pitterman of the United Nations Refugee Agency. “The flight of people escaping life-threatening violence in El Salvador, Honduras and Guatemala continues unabated. Those who manage to make it to the United States are not illegal migrants. They are refugees.”

The U.S. Citizenship and Immigration Services have since found that nearly 90% of women and children held in the three permanent family detention centers met the minimum threshold to seek asylum in the U.S. The resounding number of families able to prove they have a “reasonable fear” of returning to their home countries has meant that hundreds have been detained for months on end.

Recently, the number of families caught entering the U.S. has ebbed significantly. U.S. Customs and Border Patrol has reported a nearly 50% drop in the number of families apprehended along southwestern states in the last year. Initiatives are underway to stem the flow of families at its source and dismantle the smuggling networks that prey on vulnerable immigrants.

Judge Gee in her order stressed that the government has not offered any competent evidence that the new detention facilities have deterred or will deter others from attempting to enter the U.S. A spokesperson for Department of Homeland Security has said DHS is “disappointed with court’s decision”. The federal government has until Aug. 3 to formally respond.

But another federal court in Washington, D.C., has already put a stop to the government’s ability to limit the number of families released, ruling in February that the U.S. may no longer impose high bonds or withhold bonds entirely. Finding that the policy “causes irreparable harm to mothers and children seeking asylum,” the court ruled that detaining them may not be used as a tactic to deter others from making the journey north.

After months of reviews, congressional hearings and official site visits, the administration has acknowledged major shortcomings of detaining asylum-seeking women and children and has been forced to dramatically scale back its emphasis on enforcement. Immigration officials are to enlist a team of experts to evaluate the policy and implement a check system if families are found in detention for longer than 90 days.

“We must make substantial changes in our detention practices with respect to families with children,” Department of Homeland Security Secretary Jeh Johnson announced last month in the face of growing criticism. “In short, once a family has established eligibility for asylum or other relief under our laws, long-term detention is an inefficient use of our resources and should be discontinued.”

Now a growing number of members of Obama’s own party are turning against the policy. More than 130 House Democrats have signed onto a letter condemning the practice, saying the administration “has not fully grasped the serious harm being inflicted upon mothers and children in custody.” A delegation of members of Congress visited the two facilities in South Texas in June, calling for an end to the practice as a whole.

“These facilities need to be closed,” House Minority Whip Steny Hoyer said after visiting the facilities. “The children at these centers have committed no crime. They’ve complied with U.S. law. They came and said we need refuge, we need safety.”

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The use of family detention in the U.S. began in the early 2000’s, at the tail-end of a historic boom of immigrants leaving Mexico in search of economic prosperity. U.S. immigration officials at the time often employed a “catch and release” strategy of turning away unauthorized immigrants at the border, only to see the same people coming back days later. An effort to detain immigrants emerged as an alternative as more resources were being funneled to the border.

Congress designated a single detention facility for families after becoming uneasy with the prospect of separating children from their parents who were being sent to adult detention facilities. The T. Don Hutto Residential Center, converted out of a former medium security state prison in Taylor, Texas, was the federal government’s first-ever large-scale detention center designed specifically to house immigrant women and their children. Operations opened in May 2006. But within a year, legal groups filed a flurry of lawsuits against federal officials, charging human rights violations to children as young as 3-years-old.

Court documents described conditions at Hutto as more prison-like than not. Mothers who testified in court claimed children were forced to wear prison uniforms. Their playtime outside was limited to one hour per day. Privacy for the detainees was effectively non-existent – even when using the toilet.

The concept of family detention fell out of favor in the early days of the Obama administration, seen as so riddled with problems just a few years after Hutto opening that it made more sense for officials to shutter family detention operations there in 2009 than to vastly overhaul the system. The only other facility equipped to house children was a 95-bed facility converted out of a nursing home in Pennsylvania.

Five years after the federal government ended family detention practices at T. Don Hutto facility, the same private prison that ran those operations – the Corrections Corporation of America – was awarded a $290 million contract to run the new family detention facility in South Texas.

“It’s astounding to me, mind-blowing to me, that the government would contract with the same bad actors again,” said Lisa Graybill, a professor at the University of Denver and former legal director for the ACLU in Texas.

Testifying before a panel of the Commission on Civil Rights earlier this year, Steven Conry, vice president of facility operations with CCA, said much had changed since the days of Hutto and operators were prepared to make wholesale changes. “We had a session called ‘Lessons Learned,’” Conry told the panel of commissioners. “We sat with our ICE partner and went through the various challenges that they experienced in the past so that they’re not repeated in the future.”

Indeed, conditions have changed dramatically since the days of Hutto. Children today are offered schooling, snacks and playtime. Inside, women are free to wear their own clothes, roam freely within the boundaries of the facility and meet with their attorneys in waiting rooms equipped with toys for children to play.

But the California court’s ruling could have dramatic ripple effects to the private prison firms running immigrant family detention centers. The 1997 Flores v. Meese agreement outlined minimum standards for housing and conditions, and declared that children must be afforded basic rights, education, health and social benefits. Those standards must be overseen by a state agency to ensure the children’s welfare, the court ruled, meaning that without a license, the private prisons can not operate the facilities.

“You can put a playground in a prison, and you’re still inside a prison,” Graybill said. “Am I glad there’s a playground? Sure. That’s a good thing. But it doesn’t change the fact that they’re in a prison.”